0120181475
08-22-2018
Keith L,1 Complainant, v. Jeff T. H. Pon, Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Keith L,1
Complainant,
v.
Jeff T. H. Pon,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120181475
Agency No. 2017029
DECISION
On March 28, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 7, 2018, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, the Federal Deposit Insurance Corporation (FDIC), via announcement 2017-HQB-RG0029, sought applicants for the position of Financial Institution Specialist, CG-0570A-7. Under the terms of the announcement, which was pursuant to FDIC's "Pathways" hiring authority, applicants must have graduated within the last two years, or graduate by December 31, 2017, from a qualifying educational institution. Complainant graduated in 2009 (Master's Degree). As such, Complainant was ineligible to apply for the position.
On July 14, 2017, Complainant filed a formal complaint with Office of Personnel Management (OPM) alleging that it discriminated against him based on his age (49) when it promulgated the Pathways program which he contends has a disparate impact on potential applicants over the age of 40. He notes that OPM promulgated the regulations (5 C.F.R. � 362.302(a) and (b)(1) & (2)) governing the Pathways program, which implement Executive Order 13562 (December 27, 2010). He alleges this allows the FDIC and all participating federal Agencies in Pathways to use educational time limitations to deliberately exclude older workers from recruitment.2
Executive Order 13562 (Dec. 27, 2010) established the Recent Graduates Program, part of Pathways Programs. Section 4(a) of the Executive Order requires that participants in the Recent Graduates Program... "must have obtained a qualifying degree, or completed a qualifying career or technical education program, as determined by OPM, within the preceding 2 years, except..." certain veterans.
OPM Regulation 5 C.F.R. � 362.302(a) and (b)(1) & (2) implements Executive Order 13562. It defines candidate eligibility under Pathways Recent Graduates Program, including the educational requirements and the two-year rule as defined by the Executive Order.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant's complaint is about the legality of Pathways. It reasoned that the Agency and the Commission don't have jurisdiction over the legality of a program created by Executive Order. In support of this, it cited Hipona v. Equal Employment Opportunity Commission, EEOC Request No. 05860421 (Mar. 2, 1988). That case concerned Executive Order 11935 (September 2, 1976), which prohibited appointing anyone to the competitive service unless the person was a citizen or national of the United States, with exceptions. After being denied reinstatement because he was not a United States citizen, the complainant filed an EEO complaint and contended, among other things, that the Executive Order conflicted with Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on national origin. The Commission ruled that the complainant's argument that the Executive Order was invalid failed to state a claim that can be adjudicated in the administrative EEO complaint process. The Commission noted that the complainant did not allege disparate treatment in the adherence by the agency to the Executive Order or in applying for exceptions under the Executive Order, and under these circumstances his complaint failed to state a claim.
The instant appeal followed. On appeal, Complainant reiterates his claims.3 The Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
Complainant's claim is that Executive Order 13562, which establishes as a hiring authority the Pathways Recent Graduate Program for candidates who obtained a qualifying degree within the preceding two years is invalid because this conflicts with the ADEA, so the Agency's implementing regulations are also invalid. As remedy, Complainant asks in part that OPM remove the two-year educational requirement from the Pathways hiring authority. Applying Hipona, we find Complainant's complaint fails to state a claim.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 22, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 According to the counselor's report, Complainant has an active EEO complaint against the FDIC's Pathways program for his "non-selection" under the above vacancy announcement.
3 Complainant also argues that OPM and the FDIC jointly violated the ADEA. We decline to join FDIC with this case.
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